DMA: Lawsuits Threatening Data-Driven Marketing

WASHINGTON – The Direct Marketing Association (DMA) filed an amicus (“friend of the court”) brief last week, and the U.S. Court of Appeals for the Seventh Circuit accepted it. The brief relates to Harris v. comScore Inc., a class-action suit pending in federal court.

According to a report at DMNews.com, the case was originally brought before courts by Mike Harris and Jeff Dunstan, who allege that comScore's software failed to disclose to users the extent to which the latter's personal information would be mined and used. The claimants downloaded comScore's software along with third-party freeware, such as screensavers, and were not alerted to the fact that comScore would then have access to their personal information, such as usernames, passwords, credit card information, retail transactions, etc. The case was “conditionally” certified as a class-action lawsuit. If fully certified, the case will proceed to the Appellate court for immediate review.

DMA is asking the federal appellate court in Chicago to overturn the lower court’s order certifying a class to pursue claims that comScore’s industry best-practice disclosures failed to advise users of the extent to which its software would collect and use information about the user’s Web activity.

Several other organizations – including the U.S. Chamber of Commerce – joined the DMA in the brief. All are concerned that lawsuit threatens to rewrite the rules of Internet commerce.

Jerry Cerasale, a senior vice president at the DMA says the current presidential administration, the Federal Trade Commission (FTC), Congress and several other state and federal agencies have all recognized that DMA’s efforts and its guidelines are “precisely the type of industry self-regulation necessary to protect data while promoting clear disclosures and enabling robust online commerce.”

The DMA believes the comScore certification decision and several other recent privacy class action developments present an “urgent concern” to the Internet commerce community.

“These cases seek to establish infeasible rules for online advertising, and would likely eliminate many of the bedrock advertising practices and technologies DMA and others have worked to establish,” Cerasale says.

The acceptance of the amicus brief marks the first action of the newly formed DMA Litigation Center (DMALC). “The DMA Litigation Center will serve as the national public policy legal advocacy arm of the DMA, advocating for the fair treatment of business and the protection of data-driven marketing in the courts,” said Linda A. Woolley, DMA CEO and President.

Thomas E. Gilbertsen of Venable LLC, who served as DMALC’s co-counsel for the brief, didn’t predict any potential impact of the ruling in Harris' favor on the standard industry practices, but did say the purpose of the brief was to communicate to the court, “the standard-setting function that comScore plays in the Internet advertising industry, and therefore the larger importance and public interest in the district court's certification decision.” If the court rules in the plaintiffs' favor, Gilbertsen expects the industry leaders to appeal and work to limit the impact of the ruling.